Author: Robin West

Corey Brettschneider’s book When the State Speaks confronts a core dilemma for liberalism and indeed for liberal states: how to respond to the existence of hateful speech, utterances, practices and the groups that sponsor them and promote them, in a way that checks the damage the hateful speech does to underlying liberal principles of free and equal citizenship, while at the same time respecting the rights as well as the free and equal citizenship of the speaker. Corey rejects both of what he considers to be the two polar responses that pervade state responses, both here and elsewhere: the civil libertarian (or “neutralist”) claim that private speech is just that – private – and therefore of no concern or relevance to public values, public deliberation or public law, and that accordingly the state and larger community simply has no interest in it and should refrain from sanctioning or criminalizing it in any way, on one hand, and on the other, that of the “militant egalitarian” or some feminists, who argue that private hateful speech has very harmful and fully intended consequences and should be banned or censored in some meaningful way to stop its noxious spread. Corey suggests that both these views veer toward one or the other of two dystopian visions of the relation of the state to its citizens: the “militant egalitarian’s” view, which urges greater criminalization of hate speech, risks what he calls the “Invasive State,” meaning a state overly involved in our private lives, the traditional bogeyman of civil libertarians everywhere, while the liberal or neutralist view, according to which the state is and should be fundamentally unconcerned with the content of private speech, no matter how hateful or indeed how consequentially harmful, risks what he calls the “hateful Society,” a dystopia in which all rights and liberties are vigorously protected, but hate runs like an open sewer, undercutting the reasons we have rights in the first place, and with the consequence that some groups of citizens – women, racial minorities, gay and lesbian citizens – are frequently and even routinely subjected to hateful practices and utterances, including within the privatized nuclear family, and are left utterly unequipped for free and equal citizenship. The question he raises and tries to answer in the book is how we can avoid both the Hateful Society, in which rights are protected but hate reigns supreme in the private sector, with inequality rampant and a lesser regard for the equality of us all as its clear result, and the Invasive State, in which hate is checked, but the state is a far too intrusive, and our private lives over-regulated?

Corey’s provocative and hopeful suggestion is to introduce a third possibility, fully captured by his provocative introduction of the “Persuasive State.” The persuasive state refrains from coercion, and thus avoids the pitfall of the invasive state, but on the other hand does not deny the relevance to public values of privately held and promulgated hateful beliefs, including those promulgated within the family. The State’s response to the holders of those beliefs, Corey believes, should be to seek to persuade those citizens to transform, modify or drop their hateful beliefs, to whatever extent those beliefs conflict with public democratic values, notably, values of free and equal citizenship. The state should in effect counter hateful speech with argument – argument that those beliefs undercut the very values of free and equal citizenship that undergird the rights enjoyed by the holders of those beliefs themselves. Perhaps those with hateful views will be persuaded, and will drop the views. But even if not, other citizens will hear the dialogue, with the result being that the state will have been respectful of the equal rights of all, and will not have been complicit in the spread of beliefs that fundamentally undercut democracy.

I’m largely sympathetic to this project. I think it is entirely right for us to recognize the relevance of private hateful beliefs to public values such as equality and freedom, equal respect and due regard, and that it is entirely right as well for us to shift our focus, somewhat, from our worries over the overuse of state’s coercive role to the possible good it can do when it acts in its persuasive capacity. The state does after all speak constantly. It is almost never quiet. It speaks when it passes laws, it speaks when it justifies them in judicial decisions, it speaks when it promulgates administrative regulations and when it adjudicates those regulations, it speaks when it imposes sanctions in civil cases, and it speaks when it imprisons and fines and executes people. It can use its rhetorical powers and force to promote liberal values of equality and freedom, and it can promote equal respect, due regard, and human dignity when it does so. It already does this, obviously, but there’s no reason on earth that it shouldn’t be urged to do so more, and to do so more reflectively and effectively. And, there’s no reason it shouldn’t do so in the specific context of hate speech and pornography. This is what I take Corey to be doing, and I support the effort. I will raise just a few questions regarding the overall project which might suggest friendly amendments. Read More